Not so Black and White

Merith White lived in a condominium unit. The police searched it. Evidence obtained during that search led to him being charged with drug trafficking and possession of stolen property. He was acquitted - as a result of evidence being excluded under section 24(2) after the trial judge found that the search violated section 8. The Crown appealed. That appeal was dismissed: 2015 ONCA 508.

White lived in a condominium unit. It was one of 10 in a four story building. That unit was visited by Yianni Papadolias. Unfortunately for White, the police had Papadolias under surveillance via GPS tracking. The police suspected Papadolias was involved in drug trafficking.

As a result of that information, an officer entered the condominium unit on three occasions. On the first occasion he followed a postal worker in through the front door which was otherwise locked. On the second and third occasions he entered an doorway that would normally be locked, but for reasons not fully explained, the door was not locked and the officer entered. As a result of observations made during those entries the police obtained a warrant to enter White's residence.

At trial White successfully excluded the results of the search on the basis that it violated section 8. The Crown appealed.

On appeal the court cited Edwards and noted the factors set out therein. The court also recognized that there were "lower courts" that had found no expectation of privacy in "common areas of multi-unit buildings" - but the court rejected the applicability of those cases: 

 

It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings: see e.g. R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), rev’d on other grounds 2007 ONCA 793 (CanLII), 231 O.A.C. 19; R. v. Nguyen, 2008 ABQB 721 (CanLII),462 A.R. 240, aff’d 2010 ABCA 146 (CanLII), 477 A.R. 395; and R. v. Verrett, 2013 ABQB 658 (CanLII), 574 A.R. 212. But the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case. [@44].

Having rejected the applicability of those cases, the court offered the following (in part) as the basis for concluding that White had a reasonable expectation of privacy in the common areas and thus the entry thereto constituted a violation of section 8:

Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated. [@47-48].

The court further upheld the trial judge's conclusion that the exclusion of the evidence under 24(2) was no in error.

With respect, it is not easy to accept these conclusions.

First, to the extent there was any expectation of privacy, it was significantly diminished and not breached by the police. The court does not discuss explicitly the nature of the privacy interest at play, but it seems clear that it must be territorial. Here, however, the territorial privacy is one that the court acknowledged was accessible by others - including strangers to the accused. Moreover, while the police did not have permission to access the area, they did not do anything illegal to access the area. Indeed, on two occasions, they entered through an unlocked door. In short, while territorial privacy interests can be significant, here, where they are impacted by strangers and accessed so easily, the nature (if any) of such an expectation is significantly diminished.

Second, applying the Edwards factors does not reveal an objective basis for the expectation: (i) the accused was not present at the time; (ii) the accused could permit access, but had no real control over access; (iii) the accused had no "ownership" over the common areas; (iv) while he did have historical use over this area, many others did as well; (v) the accused has no real ability to regulate access (other than to permit). What remains are subjective and objective assessments of the accused's expectation of privacy. In light of these it is hard to accept that there is an objective expectation of privacy from plain view observations in such common areas.

Third, even if there was a breach, it is not obvious that the evidence should be excluded. If the above analysis is, at least, reasonable, the seriousness of the breach must be minimal. The evidence obtained is reliable. The offence is serious. In these circumstances, exclusion should not follow.

DM

Burning Down the House (Generally Speaking)

Paul Tatton had a drinking problem. On September 10, 2010, he grew upset and jealous that his ex-girlfriend would be away in Kingston. At the time, he was living in a guest room at her home. Mr. Tatton began to drink heavily that day, and continued drinking into the evening. Eventually, Mr. Tatton passed out. When he awoke in a drunken state, Mr. Tatton placed a pan with vegetable oil on the stove, set the burner to high, and left the house to get a coffee at Tim Horton’s. When he returned, the house was up in flames. Although the home was salvaged, the fire destroyed all of the contents inside [para 1-7].

Mr. Tatton was charged with arson causing damage to property under s. 434 of the Criminal Code. At trial, he insisted the fire was an accident. He thought he had set the temperature to low, and did not intend or foresee the consequences of his actions. A central issue at trial was whether Mr. Tatton had the requisite intent to commit the offence, and more particularly, if the court could consider his state of self-induced intoxication [para 8].

The trial judge determined that s. 434 was a specific intent offence, which allowed for the defence of intoxication to be raised. Mr. Tatton was acquitted. Although the majority of the Court of Appeal upheld his acquittal, Goudge J. dissented, and would have allowed the appeal and ordered a new trial. The Crown then appealed to the Supreme Court of Canada as of right: R v Tatton, 2015 SCC 33.

The main issue squarely before the Supreme Court was whether arson is a specific or general intent offence. This required the Court to undertake a review of how the distinction between these types of offences should be drawn. Ultimately, the Court adopted the Crown’s position, finding that arson is an offence of general intent. As a result, self-induced intoxication falling short of automatism is not available as a defence [paras 8-20. See generally R v Daviault, [1994] 3 SCR 63 and R v Bernard, [1988] 2 SCR 833].

In writing for the majority, Moldaver J. recognizes that drawing the distinction between general and specific intent offences “continues to perplex counsel and trial courts alike…the task has proved formidable to those who have been schooled in criminal law, and daunting to those who have not” [paras 22, 35]. The Court highlights that legislative intervention is “sorely needed” to spell out the mental element of offences to address this confusion [paras 22, 25].

In beginning his analysis, Moldaver J. relies on R v Daviault as a starting point. Daviault outlines that distinguishing between general and specific intent offences is a two-step process:

First, there is an examination of the nature of the mental element and its relative      importance to the crime in question.
Second, there is a consideration of the social policy sought to be attained by criminalizing the particular conduct [para 26, citing Daviault].

In Daviault, Sopinka J. specified that general intent crimes involve “the minimal intent to do the act which constitutes the actus reus”, and also tend to be “offences that persons who are drunk are apt to commit.” In contrast, specific intent crimes are those which “require a heightened mental element” and often include “the formation of further ulterior motives and purposes.” On the one hand, as more complex thought and reasoning processes are required for specific intent offences, it is more readily understandable how intoxication short of automatism may negate the require mental element for these types of crimes. On the other hand, allowing intoxication to operate as a defence to general intent crimes would contradict the social policies underlying them [paras 27-28].

Relying heavily on the principles set out in Daviault, Moldaver J. then offers the following further clarification in identifying the type of intent of a particular offence:

  • The starting point is determining the required mental element. This is an exercise in statutory interpretation, not a factual assessment [para 30].
  • The next question is determining whether the crime is one of general or specific intent. This is not a precise science – logic, intuition, and policy all play a part [para 31].
  • Existing jurisprudence may have already determined the appropriate classification of a particular offence. Where done so satisfactorily, there is no need to examine the question again [para 32].

Moldaver J. then turns to addressing two additional questions left unanswered by the court in Daviault [para 33]:

  1. What is meant by the “importance” of the mental element?
  2. Do policy considerations always come into play, or only if an examination of the mental element leaves the classification of the offence still unclear?

First, in addressing “the importance” of the mental element, Moldaver J. clarifies that what was meant was an assessment of “the complexity of the thought and reasoning processes that make up the mental element of a particular offence.”

General intent crimes require little mental acuity. They are straightforward, and do not require an intent to bring about certain consequences external to the actus reus [paras 34-26].

In contrast, specific intent offences involve a heightened mental element. While in Daviault the court limited its discussion to specific intent crimes where an ulterior motive is involved, Moldaver J. clarifies that an ulterior motive is not always required. Instead, there could be knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes [para 37-40].

Second, Moldaver J. writes that only if the analysis of the thought and reasoning processes required fails to yield a clear answer should policy considerations come into play. The nature of the mental element itself is already intertwined with policy considerations. If no clear answer is apparent, assessing whether alcohol consumption is habitually associated with the crime in question may be of assistance. If it is, then allowing an accused to raise self-induced intoxication as a defence would seem counterintuitive, and the offence is likely one of general intent. If it isn’t, then the offence would likely be one of specific intent.  Other residual policy considerations, such as the inclusion of a lesser included general intent offence and judicial sentencing discretion, may also come into play.

In the context of determining the intent requirement for arson causing damage to property, Moldaver J. makes the general observation that alcohol habitually plays a role in crimes involving violent or unruly conduct, and that alcohol also tends to be prevalent in crimes involving damage to property. While there are exceptions (such as murder), the Court concludes that it makes little sense from a policy perspective that self-induced intoxication is a defence available where people or property are harmed or endangered. [41-45].

Applying the legal framework set out in the Court’s decision, the Supreme Court ultimately concludes that the offence of arson causing damage to property is one of general intent. The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act – the causing of damage to property. No additional knowledge or purpose is needed. The level of intent required would appear to be minimal. Having determined the intent requirement as being general, the Court then moves on to provide a thorough assessment of how the intent required under s. 434 should be made out, given it “can be a tricky exercise” [paras 48-54].

In Mr. Tatton’s case, the Supreme Court also determined that the trial judge’s erroneous conclusion that the offence was one of specific intent, and that intoxication was an available defence, played a material role in the outcome [see R v Graveline, 2006 SCC 16]. For these reasons, the appeal was allowed, the acquittal set aside, a new was trial ordered.

Comment:

Tatton is a two-fold decision. Not only does the Court expressly offer a detailed review of the framework for assessing how to distinguish between general and specific intent offences, the Court’s reasons for why s. 434 is a general intent offence is bound to have a broader impact on the intent requirement for the other arson-related provisions in the Criminal Code.

Further, while the Court did not set down a “general rule”, the express reference to the common intersection between alcohol use and crimes of violence was notable; suggesting that allowing self-induced intoxication to be raised in such cases would be illogical and counter-intuitive to good public policy.

SS 

Implied Duty to Google It?

Marshall, a pediatrician was charged with 32 counts of sexual assault and sexual interference in relation to 20 of his former patients and two young males who were not patients. At the conclusion of the trial Marshall was acquitted of all the allegations involving the 20 patients and one of the non-patients.

Marshall was convicted of one count of sexual assault in relation to a young man PM, who was not a patient. PM testified that on three occasions when he was between the ages of 16 and 18, Marshall touched him in a sexual manner. Marshall was found guilty of touching PM’s genitals, rubbing his crotch against PM’s buttocks and laying on top of PM. In the last incident PM was able to break free and run away as Marshall “I am not trying to fuck you yet.” [at para. 8]

Marshall was sentenced to 8 months in custody. He appealed both conviction and sentence and sought to tender fresh evidence. The Ontario Court of Appeal dismissed the appeals from conviction and sentence: 2015 ONCA 518

The Court also declined to admit the fresh evidence. On appeal Marshall sought to tender evidence that PM suffered from PTSD, anxiety and depression, all of which arose following his return from a difficult tour on active duty as a member of the Canadian Armed Forces. Additionally, Marshall wished to tender evidence that in 2006 PM had been charged with two counts of assault causing bodily harm and two counts of assault and that a stay of proceedings was entered following the plea of guilty of a co-accused.

The Court found that none of the proposed fresh evidence met the threshold for admissibility as set out in the Supreme Court’s decision in Palmer. In reaching this conclusion the court noted that the evidence was in fact “available at the time of trial in that it was posted on the internet.” [at para 19].  Such a statement of course begs the question, do lawyers have an implied duty to google it?

LT

 

 

 

Protecting privilege, for everyone

Mike Rutigliano was a police officer. He was charged with various criminal offences including obstruct, breach of trust and fraud. As a result of a ruling related to a pre-trial motion the Crown stayed the proceedings. The Crown then appealed from that stay: 2015 ONCA 452.

Rutigliano was working for the OPP and was, at the time, responsible for the courts bureau at the Toronto detachment. An RCMP investigation uncovered ties between Rutigliano and organized crime individuals. As a result of a suspicious bank transaction he became the subject of an investigation.  As part of the investigation the police obtained four Part VI authorizations.

One of the pre-trial motions launched was an abuse of process motion seeking a stay of proceedings. The allegation of abuse related to the pursuit and obtainment of wiretap authorizations. In short, the abuse surrounded the actions of the police in their use of potentially privileged communications contrary to the Part VI authorization. The court outlined it this way:

Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as “privileged” without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.
[…]
In early 2009, the Commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown Attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice. [@16 and 18].

The defence sought to explore this “privileged advice” about how to handle the wiretaps as part of its abuse of process motion. The motion judge ordered the communications between the investigators and the Crown to be produced for his inspection, despite the assertion by the Crown that it was covered by solicitor-client privilege.

The Crown then stayed the proceeding and appealed.

The first issue on appeal was whether the appeal itself was an abuse of process. The court held that it was not. Citing United States of America v. Fafalios, 2012 ONCA 365 the court accepted that such a decision by the Crown could be permissible if: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”. [@34].

In this case the criteria were satisfied: I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. [@37].

The second issue was whether the privileged had been waived by officers during their testimony on the motion – by indicating they had advice from the Crown. The court agreed with the motion judge that privileged had not been waived. Part of the reason was that the individual officers lacked the authority to waive the privilege, but the court also noted:

The motion judge further held that, quite apart from the authority-to-waive issue, officers’ responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege. [@40].

A third issue dealt with on appeal was whether the ruling – aside from the merits of the issue – was premature or unnecessary. The court concluded that it was:

I agree with the Crown’s position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.
[...]
In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R v. Babos test for abuse of process, at para. 32, without the privileged information. [@50 and 59].

The appeal was allowed and the matter remitted to the motion judge. Rutigliano is a very interesting case and the court’s ruling offers some helpful guidance on this issue. It is interesting – and important – to track the court’s handling of solicitor-client privilege in a way that is uniform regardless of whom the client is. This important privilege must be respected by the courts and this ruling goes a long way toward that end.

DM

Take notice, jurisdiction is predicated on it!

Andrew McCann, Jamie Masse and Patrick Thompson blocked a cattle truck from leaving the Frontenac Penitentiary. The blockade was part of a peaceful protest. They were convicted of mischief and received conditional discharges. Their appeal to the summary conviction appeal court was dismissed. They appealed to the Ontario Court of Appeal: 2015 ONCA 451.

On appeal the appellants presented arguments that ultimately were based on the assertion that “the court below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter” [@3]. The court rejected this argument:

The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument. [@4].

The failure to serve notice was fatal the court held:

Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska, Jr. v. Cava (2002), 59 O.R. (3d) 469 (C.A.); R. v. Briggs (2001), 55 O.R. (3d) 417 (C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.
We agree with the respondent that the appellants’ submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy. [@6-7].

McCann is a helpful decision which clearly recognizes that notice is not merely a procedural formality, it is a substantive pre-requisite to the consideration of a constitutional issue. In the absence of notice the court lacks jurisdiction to grant a remedy. This principle has universal application; it is unaffected by the importance or prevalence of the issue at hand. While the issue is well settled law, it seems that remains at issue in some cases: see Nicholson, 2014 OJ No 3860 (where the court overturned a constitutional ruling by the lower court which proceeded in the absence of notice). McCann therefore offers a helpful reminder from the Ontario Court of Appeal.

DM

Drug Recognition Experts are Experts

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complex  and struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. In doing so, the court offered the following points.

First, contrary to the submission of Bingley (via his counsel Mr Brown) section 254(3.1) is not simply a procedure provision that serves only as a precondition to the making of a demand under 254(3.4).

Had Parliament intended the DRE’s evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly. [@39].

In so concluding, the court noted that 254(3.4) is permissive, not mandatory. It follows that it would be illogical and incongruous to interpret 254(3.1) as merely a procedure step toward the obtainment of a biological sample under 254(3.4) when the latter is not mandatory.

Second, the statutory construct of 254(3.1) and related provisions makes it clear that an “evaluating officer” is permitted to provide an opinion on impairment.

Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. [@44]

The court continued:

By requiring the DRE “to determine” whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion – that is, to form an opinion – as to impairment. It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out. No further statutory provision is required for the DRE opinion evidence to be admitted. This conclusion flows from the wording of s. 254(3.1) and is harmonious with the object and scheme of the legislative provisions and Parliament’s intention.
The detailed scheme in the relevant legislative provisions and the Regulations provides further support for this conclusion. Not all peace officers are entitled to perform drug evaluations under s. 254(3.1). Instead, only peace officers “who [are] qualified under the [R]egulations” are allowed to perform the evaluations (s. 254(1)). Under s. 1 of the Regulations, the evaluating officer “must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.” Furthermore, s. 3 of the Regulations specifies precisely which tests the DRE must perform in conducting the evaluation under s. 254(3.1). By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations. [@47-48].

In short, the Court of Appeal concluded that once it is established that an officer is an “evaluating officer” – who by definition is a drug recognition expert – that officer is permitted – on the basis of an evaluation and other evidence – to provide an opinion on whether an accused is impaired by drug.

Bingley is a significant decision. It is the first Court of Appeal ruling on this point in Canada. It is in line with a recent trend in Ontario accepting this approach: see R v Lecomte, 2014 CarswellOnt 10127 @11-13 (CJ); R v Dejesus, 2014 ONCJ 489 @7-9; R v Oum, 2014, ONSC 5131 @14-27.

Bingley also stands as a clear and unequivocal rejection of the argument that a Mohan voir dire is necessary to allow an evaluating officer to provide such an opinion – an argument advanced by Bingley (at both trials) and one accepted by other lower courts.

DM

Every St Cloud has a silver lining

St Cloud, along with two others, was alleged to have been the perpetrator of a violent and vicious assault against a City of Montreal bus driver. The incident was video recorded by the onboard surveillance system. Notwithstanding the intervention of passengers the attack continued- the driver was left with serious long-term injuries.

St Cloud sought bail. The Crown bore the onus. At the time of the initial bail hearing the medical prognosis for the victim was uncertain- he remained in hospital. The bail hearing Judge found that the Crown had discharged their onus on the secondary ground but nonetheless went on to consider whether detention was warranted on the tertiary ground.

The bail hearing judge explained that the tertiary ground “calls for an analysis of whether, at the end of the day, after all the circumstances are considered ... there is a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice.” [@para 13]

The bail hearing judge concluded in light of the videotape and all of the circumstances a public who is well-informed, dispassionate and reasonable would conclude that St Cloud’s detention was warranted on the tertiary ground.

At the conclusion of the preliminary hearing St Cloud made a renewed bid for his release.  The preliminary hearing judge concluded that in order to hear the application St Cloud first had to demonstrate a material change in circumstance- the judge accepted that a new release plan financially backed by the accused’s parents and the possibility of employment were sufficient for the Court to consider the application.

The preliminary hearing judge concluded that the new plan reduced the applicant’s risk of re-offending however on the tertiary ground the court concluded that the initial bail hearing judge was correct to detain on the basis that releasing St Cloud would erode the public’s confidence in the administration of justice. [@para 18]

St. Cloud applied pursuant to section 520 of the Code to the Superior Court for a review of the preliminary hearing judge’s denial of bail. Martin J concluded that both the initial bail hearing judge and the preliminary hearing judge had erred in their interpretation of the tertiary ground as they failed to consider that the crime although “repugnant, heinous and unjustifiable” was in fact explainable. [@para 23]

The Crown appealed: 2015 SCC 27 and the Supreme Court of Canada reviewed the correct approach to the tertiary ground for the first time the high court’s decision in R v Hall, 2002 SCC 64.

Wagner J writing for the Court first reviewed R v Hall and noted three significant areas of misinterpretation which have emerged in the jurisprudence post-Hall.

First, the facts in Hall were of a particularly heinous crime. A murder of a young woman who sustained 37 slash wounds during her attack.  The tertiary however does not require that the crime be heinous or horrific in order for the accused to be detained. In fact as Wagner J explained of Hall, “[t]he Court’s description of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by the Court in its analysis of s. 515(10) (c) Cr.C. It cannot be read as imposing conditions or prerequisites.” [@para 46]

Second, the Court in Hall referred to the crime as unexplained. This was of course a mere statement of fact about the circumstances of the case and not as Wagner J explained in St Cloud a criterion to be considered in applying the tertiary ground.

In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?
Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crime criterion is of little assistance. [@paras 47-48]

Third, the infrequent application of the tertiary ground as a basis for detention is not a precondition to its application. As Wagner J explained, it is a consequence not a condition precedent.

I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10) (c) will remain “rare” if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires. In my opinion, a comparative approach such as this could potentially undermine the public’s confidence in the administration of justice. [@para 52]

The Court then helpfully summarized the principles that must guide courts in applying the tertiary ground:

  • Section 515(10) (c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.
  • Section 515(10) (c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
  • The four circumstances listed in s. 515(10) (c) Cr.C. are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. 
  • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter  values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [@para 87]

In light of the principles articulated above and the Superior Court’s erroneous reliance on the ‘explainable’ nature of the crime, the Court concluded that detention order should be restored.

LT

Book Review: Sing a Worried Song

Sing a Worried Song; An Arthur Beauchamp Novel; by William Deverell; ECW Press, Toronto, 2015

Imagine my joy! I am headed to the train station to attend a continuing education conference in Toronto and decide to pop into my local library to see if any new books are of interest. As I enter, the librarian states: “we have a new Deverell … are you interested?”  It is the equivalent of asking whether I enjoy the trials of Rumpole, the detective works featuring Armand Gamache, John Rebus and Harry Hole, leaving aside Commissaire Maigret and Tintin!  It is the latest courtroom adventure of Arthur Beauchamp (pronounced Beechum), who has defended with passion and zeal alleged terrorists from an Asian country with a name no one can pronounce to the more typical sorts of accusations known to Canadian justice, but involving far from common individuals, often by quoting Latin sages and sacrificing his vanity whilst avoiding alcohol, save for those times when he has not been able to resist temptation…

For those familiar with the many signal writings of Willam Deverell, a celebrated barrister in his own right with an impressive history of advancing civil rights claims prior to the Charter, and since, I need do little more than to state that he is well known for his quirky characters and unforeseen endings; to know this author is reason enough to order this latest soon-to-be bestseller.  For readers of French, Yves Beauchemin comes to mind in terms of the unusual “personnages” and fascinating endings penned by Deverell. That being said, the correct words fail me as I attempt to summarize the forensic acumen and the bedroom debacles of this endearing Queen’s Counsel for those not yet privileged to have read one of the prior books in this well received series.  Allow me to say that each chapter is captivating by reason of the depth of the study of human nature on display and the breadth of the circumstantial attacks on the law’s many illogical requirements and expectations. 

I hasten to add that this volume is of particular interest to Crown counsel as Beauchamp leaves aside his typical brief on behalf of the accused in order to prosecute a well to do graduate student charged with the apparent “thrill kill” of a street clown.  The action begins some twenty five years previously, to then leap forward as we encounter our hero, attempting to enjoy retirement on his island of repose, together with a cast of neighbours that call forth the best of Hogan’s Heroes, Papillon, the Keystone Cops and Bob Morane and Bill Ballantine.  Deverell adds a few trips to Vancouver, including voyages to the past, to expose the antics and outrageous conduct of the Bench and Bar. 

Based on a trial William Deverell was engaged in on behalf of the Crown, Sing a Worried Song contains not only the captivating trial scenes one expects from so experienced an advocate but the gripping and suspenseful writing of one who has spent four decades honing his craft.  This book is full of lessons for all counsel engaged in criminal litigation, not least in terms of the dangers attendant upon high-stakes litigation fuelled by stimulants of all kinds.  It is especially useful for prosecutors as we see the dangers of overreaching, of ego and of allowing the thrill of the “hunt” to potentially obscure the ethical boundaries of the fair and just presentation of evidence.  In the end, Deverell makes plain that the road to justice is chalk full of potential pitfalls while entertaining his readers at every turn of the page.  It should be required reading at this summer’s Crown School.

Gilles Renaud, Ontario Court of Justice

Parity does not mean Equal

Sahota participated in a prison riot. He was part of a group that attacked another smaller (in numbers) group at the Joyceville Prison. Ultimately, the attack focused on a single victim who was beaten severely. Sahota’s involvement in the attack was viscous and “substantially in excess of anything done or even attempted by the other inmates” [@para 2].

Sahota participated in the initial attack, he then returned to the victim who lay bloody and unconscious on the floor. Armed with a pool cue, Sahota speared the victim in the groin. He pulled down the victim’s pants and speared him again in the genitals with the pool cue. He spat on the victim and stomped on him before leaving the room [@para 3].

Sahota was charged with attempted murder but plead guilty to the lesser and included offence of aggravated assault. The Crown sought a sentence of 8 to 10 years; the defence sought a term of imprisonment of 3 ½ to 5 years. The sentencing judge imposed a sentence of 7½ years less 45 days of pre-sentence custody. Sahota appealed: 2015 ONCA 336

The sentencing judge had heard and sentenced the other offenders involved in the attack. Sahota argued that the sentencing judge failed to properly apply the principle of parity  as required by section 718.2(b) of the Code.

In dismissing the appeal the Court held that “this principle is one of parity, not equivalence” [@para 6].  The Court explained that “the principle of parity means that any disparity between sentences for different offenders in a common venture requires justification” [@para 7]. In this case the actions of the offender in returning to the room, delivering blows to the unconscious and injured victim, and spitting on the victim clearly set this offender apart. The fact that the other offenders were sentenced on the basis of joint submissions:

did not compel [the sentencing judge] to impose an equivalent or near equivalent sentence on the appellant for an offence that reflected a significantly greater degree of  moral blameworthiness. [@para 8]

Before concluding the Court of Appeal noted that:

it was not inappropriate for a trial judge to consider that a guilty plea in the face of an overwhelming case may not be accorded the same weight as one in which an accused pleads guilty and gives of significant litigable issues. [@para 9]

In Sahota’s case the evidence of his involvement was overwhelming, whereas the identity of the individuals who participated in the initial attack was less clear and as the Court of Appeal put it each of them “may have challenged the Crown’s case on identification.”  [@para 9]

LT

Less than Malicious Prosecutions

Section 24(1) of the Charter allows for the award of damages for Charter breaches. “Damages are a powerful tool that can provide a meaningful response to rights violations” [@para 35]. This general principle has been a long standing reality and not a terribly surprising one given that section 24(1) allows for any remedy that “the court considers appropriate in the circumstances.” The precise question before the Supreme Court of Canada in Henry, however, was a new one: can damages be awarded to a claimant who establishes prosecutorial misconduct that falls short of malicious. The short answer is yes, in rare circumstances: R v Henry, 2015 SCC 24

The majority of the Court however noted that they were treading into new territory and that they should do so cautiously. Damages, they opined “represent an evolving area of the law and must be allowed to develop incrementally.”[@para 35]

In 1983 Henry was convicted of 10 sexual assaults; he was convicted and sentenced to an indeterminate period of incarceration as a dangerous offender. He was incarcerated for 27years before the British Columbia Court of Appeal quashed all 10 convictions finding serious errors in the conduct of the trial. [@para 1]

Following his release from prison Henry launched a civil action against the City of Vancouver, the Attorney General of BC and the Attorney General of Canada. With respect to the provincial AG Henry sought damages on the basis that the Crown “should be held liable for its failure- before, during and after his criminal trial – to meet its disclosure obligations under the Charter.” [@para 2]

Initially Henry’s pleadings claimed that the prosecutorial conduct was malicious and sought the damages on that basis. Those pleadings were amended to also seek an award for prosecutorial misconduct that fell short of malice.

The Supreme Court of Canada offered four reasons why the maliciousness standard was ill suited as a threshold for damage claims arising out of wrongful non-disclosure. First, the malice standard is deeply embedded in the tort of malicious prosecution, which of course has a distinct history and objective. Second, malice requires that application judge make a finding of improper purpose. The Court noted that this line of inquiry is entirely appropriate for highly discretionary prosecutorial decisions. However, disclosure is not subject to prosecutorial discretion it is a constitutionally protected right and thus obligation of the Crown. Third, disclosure is not an exercise in core prosecutorial discretion so the onerous threshold of malice is unnecessary. Fourth, a purposive interpretation of section 24(1) does not favour the malice standard.

Moldaver J writing for the majority of the Court held that notwithstanding the fact that the malice standard does not apply in cases of wrongful non-disclosure the departure to a lesser standard is still very high. It must be a high standard because to do otherwise would be to expose “prosecutors to an unprecedented scope of liability that would affect the exercise of their vital public function.” [@para 78]

With this in mind the majority concluded that in a case of wrongful non-disclosure:

[t]here is no inquiry into the Crown’s motive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, the focus is on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge. Specifically, a cause of action will lie against the state — subject to proof of causation — where a prosecutor breaches an accused’s Charter rights by intentionally withholding information when he or she knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. [@para 84]

The majority further held that:

Whether considered at the pleadings stage or at trial, the same formulation of the test applies. At trial, a claimant would have to convince the fact finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter  rights; and (4) he or she suffered harm as a result. To withstand a motion to strike, a claimant would only need to plead facts which, taken as true, would be sufficient to support a finding on each of these elements.[@para 85]

This approach to the appropriate threshold, less than malice in cases of wrongful non-disclosure, is consistent with the Court’s cautionary words at the outset of the decision:

Charter  damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving area of the law that must be allowed to “develop incrementally” [@para 35]

Less than malicious exercises of prosecutorial power will rarely be cause for damages. In fact, the standard in Henry was incrementally expanded short of malice to accommodate a scenario where the prosecutors failed to discharge a duty for which there exists no discretion. 

LT